Human Resources

Board of Trustees Policy

SUBJECT:

Policy on Sexual Misconduct in Accordance with Title IX, VAWA, and the Campus SaVE Act

NUMBER:

6.17

DATE:

January 20, 2015

SUPERSEDES:

April 15, 2013

Purpose

The purpose of this policy is to comply with the provisions of Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. Sec. 1681, et. seq., which prohibits discrimination on the basis of sex in the course of any federally funded educational program or activity, and to further comply with the Violence Against Women Reauthorization Act of 2013 (“VAWA”) and its attendant Campus SaVE Act provisions (“Campus SaVE”). This policy aims to protect all members of the Montgomery County Community College (the “College”) community and its guests from discrimination based on sex, sexual harassment, and sexual violence including dating violence, domestic violence, sexual assault and stalking, with additional attention to such sexual misconduct when targeted at an individual because of his/her national origin, ethnicity, gender identity, gender presentation, or sexual orientation.

Accordingly, this policy on sexual misconduct will articulate the scope of sex discrimination as defined in Title IX, VAWA and the Campus SaVE Act to include discrimination based on sex, sexual harassment, dating violence, domestic violence, sexual assault, stalking and any of the aforementioned acts of discrimination or violence when committed against individuals because of their known or perceived national origin, ethnicity, gender identity, gender presentation, or sexual orientation.

This policy against sexual misconduct will establish a procedure for recourse, resolution and rehabilitation of all complainants of all forms of sexual misconduct, while protecting the due process rights of alleged respondents of sexual misconduct, and for resolving any and all such cases in a prompt and equitable manner.

Scope

This policy covers any case of sex discrimination, sexual harassment, and all forms of sexual violence including dating violence, domestic violence, sexual assault, and stalking, that involves students, guests or employees of the College, while enrolled, employed, or participating in any educational program or activity at the College. This policy also covers any act of discrimination based on sex, to include sexual harassment and all forms of sexual violence listed herein, committed against a member of this community on the additional basis of an individual’s known or perceived national origin, ethnicity, gender identity, gender presentation, or sexual orientation.

To the extent that the College experiences an incident of sexual misconduct on the part of any of the members of its University Partners, or of other groups using any of the College’s premises, or involved with any activity of, or at, the College, the College is committed to the following actions on behalf of all members of its community.

To take all necessary steps to protect the safety of its educational programs and activities and all participants therein.

To notify the University Partner or community partner in question of the alleged incident on the part of any of its members, so as to enable those partners to take appropriate action in accordance with their policies and procedures.

To reserve the right to refuse access to its premises, programs or activities in the interim, or on a permanent basis, of any individual complained against, in order to protect the safety of the complainant(s), and that of the College community as a whole.

Policy

In accordance with the provisions of Title IX, VAWA and the Campus SaVE Act, the College prohibits discrimination on the basis of sex in any of its educational programs and activities, to include any programs and activities sponsored by the College, conducted on or off campus, and while en route to such programs and activities, in college-owned, or college-sponsored transportation. Unlawful discrimination based on sex, sexual harassment and any and all forms of sexual violence as delineated herein by officers, managers, faculty, supervisors, employees, students, advisors, vendors, clientele, University and community partners, or contractors is a violation of this policy.

All complaints of sex discrimination, including sexual harassment or sexual violence, dating violence, domestic violence, sexual assault, and stalking, must be brought to the immediate attention of the Title IX Coordinator for the College. The Title IX Coordinator for the College is the Director of Equity and Diversity Initiatives and may be reached at College Hall on the Central Campus, by phone at 215-619-7383, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.. In the event of an emergency, or an off-hours situation, the Office of Public Safety should be contacted which in turn will promptly report the incident to the Title IX Coordinator for further action pursuant to the terms of this policy.

All employees are responsible for bringing any such complaints to the direct attention of the Title IX Officer. In addition, designated responsible employees, to include deans, directors, program coordinators, advisors, counselors, coaches and all members of Human Resources, Public Safety and Student Affairs, have a duty to assist and inform complainants as to the following.

The availability of counseling services.

The complainant’s reporting options, including the choice to decline notifying law enforcement authorities altogether.

The responsible employee’s affirmative duty to report the incident to the Title IX officer.

The College has an affirmative duty pursuant to Title IX, VAWA, and the Campus SaVE Act to take immediate and appropriate action once it knows, or reasonably should have known, of any act of sex discrimination, to include sexual harassment and sexual violence including sexual assault, stalking, domestic violence, and dating violence, in any of its educational programs and activities. The College will act on any complaint of sexual misconduct in order to resolve such complaints promptly and equitably.

Upon request and within reason, the College will provide complainants with assistance in changing their academic, living, transportation, and working situations regardless of whether they choose to report the crime to campus police or local law enforcement.

Complainants who make good faith complaints are protected from retaliation pursuant to Title IX, VAWA and the Campus SaVE Act, this policy, the College’s policy against Sexual Harassment, and the College’s Whistleblower Policy. Any retaliation against an individual who has complained about sexual harassment or unlawful discrimination or sexual violence, to include sexual assault, stalking, dating violence, or domestic violence, or retaliation against individuals for cooperating with an investigation of a complaint of sexual harassment, sexual violence, or unlawful discrimination, is a violation of this policy.

Persons who violate this policy will be subject to disciplinary action up to and including termination of employment, suspension, expulsions and/or termination of the contractual relationship.

Definitions

Consent: A person is incapable of giving consent if that person is under the age of consent (16 in Pennsylvania), incapacitated due to the influence of drugs and/or alcohol, or mentally disabled. Additionally, consent may be withdrawn during the course of a sexual encounter, such that the encounter would thereafter constitute sexual misconduct, if continued.

Dating Violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, type of relationship, and frequency of interaction between the persons involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse but does not include acts covered under the definition of domestic violence.

Discrimination on the Basis of Sex is illegal under both federal and state law and is strictly prohibited by the College. Sex discrimination can be manifested by unequal access to educational programs and activities on the basis of sex, unequal treatment on the basis of sex in the course of conducting those programs and activities, or, the existence of a program or activity that has a disparate impact on participation, improperly based on the sex of the participants.

Domestic Violence is a felony or misdemeanor crime of violence committed by either a current or former spouse or intimate partner of the victim, a person with whom the victim shares a child in common, a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, a person similarly situated to a spouse of the victim under the domestic or family violence laws of this jurisdiction receiving grant monies under VAWA, or by any other person against a youth victim or adult who is protected from that person’s acts under the domestic or family violence laws of this jurisdiction.

Sexual Assault is a forcible or non-forcible sex offense under the Uniform Crime Reporting System of the FBI. Under Pennsylvania law, sexual assault is a felony of the second degree and is defined as sexual intercourse or deviate sexual intercourse with a complainant without the complainant's consent.

Sexual Harassment is a form of sex discrimination that is illegal under both federal and state law and is strictly prohibited by the College. Unwelcome sexual advances, requests for sexual favors and other physical or verbal conduct of a sexual nature constitute sexual harassment when:

Submission to such advances, requests or conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic advancement or participation in College programs or activities, or is used as a basis for employment or academic decisions affecting the individual; or

Rejection of such advances, requests or conduct affects a term or condition of an individual’s employment or academic advancement or participation in College programs or activities, or is used as a basis for employment or academic decisions affecting the individual; or

Such conduct has the purpose or effect of unreasonably interfering with an individual’s work, academic performance, education, or participation in College programs or activities, or of creating an intimidating and/or hostile, work or academic environment.

Sexual Violence is a form of sex discrimination that is illegal under both federal and state law and is strictly prohibited by the College. Sexual violence is defined as physical sexual acts conducted either against a person’s will or where a person is incapable of giving consent, including but not limited to, rape, sexual assault, sexual battery, sexual coercion, dating violence, domestic violence, stalking and sexual violence based on the intentional selection of a victim based on criteria related to the victim’s national origin, ethnicity, gender identity, gender presentation, or sexual orientation.

Stalking entails engaging in a course of conduct or repeated acts directed at a specific person, which would cause a reasonable person to: fear for his or her safety or the safety of others; or to suffer substantial emotional distress. For the purposes of the definition of stalking, “course of conduct” is defined as two or more acts including but not limited to acts in which the stalker directly, indirectly, or through a third party, by any action, device, method, or means, follows, observes, monitors, surveils, threatens or communicates to or about a person, or interferes with a person’s property. “Reasonable person” is defined as a reasonable person under similar circumstances and with similar identities to the victim. “Substantial emotional distress” means significant mental anguish or suffering that may, but does not necessarily, require medical or other professional treatment or counseling.

For specific information on the College’s procedures for reporting and obtaining assistance in the event of any of the aforementioned manifestations of sexual violence, stalking, domestic violence, or dating violence, please refer to the Sexual Assault Procedures link on the College’s Public Safety web page.

Employee, Faculty and Student Responsibilities

Each employee, faculty member, administrator and student of the College is personally responsible as follows.

For ensuring that s/he does not engage in conduct that violates this policy.

For bringing any known violations of this policy to the immediate attention of the Title IX Coordinator or the Director of Public Safety, who will in turn immediately notify the Title IX Coordinator.

For cooperating in any investigation of alleged sexual harassment domestic violence, dating violence, sexual violence, stalking, or unlawful discrimination based on sex, or retaliation, if requested to do so by the person conducting the investigation.

Designated Responsible Employees

Individuals further designated as “responsible employees” at the College are required, when first contacted by a complainant, to inform the complainant of the responsible employee’s duty to report any complaint of sexual misconduct directly to the Title IX Coordinator; to inform the complainant of the options for filing complaints with the College, Law Enforcement, or both; and to assist the complainant in obtaining counseling and medical services where appropriate, particularly if the preservation of evidence could be a concern. Responsible employees include the President, all Vice-Presidents, Deans, Directors, Program Directors, Coaches, Counselors and Advisors, Student Club Advisors, in addition to any employee from Human Resources, Campus Safety, and Student Affairs.

A report to a responsible employee is a report to the College. It obligates the College to investigate and it obligates the College to take all appropriate steps to address the situation, prevent its recurrence and remedy its effects.

Title IX Grievance Procedure

Anyone who believes that s/he or any other member of the College community has encountered sex discrimination, sexual harassment, sexual violence, domestic violence, dating violence, or stalking as prohibited by this policy, whether by a supervisor, a co-worker, faculty member, student, vendor, contractor or any other person with whom s/he comes in contact at the College, in the course of any educational program or activity at the College, should report the incident directly to the Title IX Coordinator for the College. The Title IX Coordinator for the College is the Director of Equity and Diversity Initiatives and may be reached at College Hall on the Central Campus, by phone at 215-619-7383, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.. Any person who receives a complaint of sex discrimination, sexual harassment, sexual violence, domestic violence, stalking, or retaliation from an employee or student, or who otherwise knows or has reason to believe that an employee or student has been subjected to any of the aforementioned, is expected to report the incident promptly to the Title IX Coordinator for the College. Designated Responsible Employees are further required to assist the complaining party as outlined in the above paragraph entitled Designated Responsible Employees.

Depending on the facts and circumstances of the specific complaint, the Title IX Coordinator will immediately contact agencies and organizations to effect immediate relief, care, and support for the complainant and/or the victim in any given case including but not limited to:

The closest, competent health care facility

The Police Department and Campus Public Safety

The Student Support Referral Team (SSRT)

The Employee Assistance Program (EAP)

Victim Services of Montgomery County

Anyone who believes that s/he has encountered sex discrimination, sexual harassment, sexual violence, domestic violence, dating violence, or stalking as prohibited by this policy is advised to preserve all evidence that may assist in proving that the alleged criminal offense occurred or may be helpful in obtaining a protection order.

The Title IX Coordinator will enable a prompt, fair, and impartial investigation into any allegation of sexual misconduct or retaliation, by trained investigators, so as to enable a prompt and equitable response under all circumstances and in a fair and expeditious manner. The investigation will be completed within 15 days of receipt of the complaint by a trained and designated investigator for the College, unless the timeframe must be extended for good cause by the Title IX Coordinator. The Title IX investigator will allow the parties to present witnesses and other evidence during the investigation. The investigation will continue whether or not the complaint is also being investigated by another agency or law enforcement unless the Title IX investigation would impede law enforcement’s investigation. If the investigation is suspended during an investigation by law enforcement, the College will implement interim steps to protect the complainant and/or victim’s safety.

As an immediate priority, care will be taken to ensure the safety and well-being of the complainant and/or victim, and to exercise all precautionary measures to prevent a repeat of the alleged incident of sexual misconduct. Accordingly, interim measures such as a temporary suspension, may be implemented pending a hearing on the matter.

The Title IX Coordinator will inform the complainant in a case of sexual violence, dating violence, domestic violence, sexual assault or stalking, of the right to file a criminal complaint. In all cases of allegations of sexual harassment or sexual violence between any two parties who are members of the College community, a Title IX hearing will be conducted following the conclusion of any investigation into the matter. Pursuant to a Title IX hearing, both parties will have the right to review all evidence and investigative reports beforehand, to have advisors present, and to present their version of the facts and circumstances surrounding the alleged incident of sexual misconduct. Care will be taken to preserve the rights of complainants of sexual misconduct to privacy without sacrificing the rights of respondents to due process. The Title IX Coordinator will conduct a hearing based on the alleged incident(s) of sexual misconduct and a determination of culpability will rest on the evidence presented and reviewed, using a “preponderance of the evidence” (i.e. more likely than not) standard of proof.

Upon completion of the investigation and Title IX hearing, any case of sex discrimination, sexual harassment or sexual violence, retaliation, or sexual misconduct will be referred to the appropriate administrative division’s Vice-President for further prompt and equitable proceedings, commensurate with the recommendation and findings of the Title IX Coordinator.

The entire process, from complaint to recommendation for resolution, should be conducted in a prompt and equitable manner, and should be completed no later than 45 days from receipt of a complaint. Extensions may be granted under extenuating circumstances, upon review by the Title IX Coordinator.

Upon completion of the investigation, and a Title IX hearing, the appropriate area Vice-President shall notify both complainant and respondent of the findings and recommendations of the Title IX Coordinator, shall accept or modify the recommendations as appropriate, and notify both complainant and respondent of the decision to accept or otherwise modify the recommendations of the Title IX Coordinator, simultaneously and in writing. The entire process, from complaint to notification of resolution by the appropriate Vice President, shall not exceed 60 days.

Disciplinary Action

In the event that the investigation reveals that sexual harassment, sexual violence, dating violence, domestic violence, sexual assault, stalking, discrimination based on sex, retaliation or other inappropriate or unprofessional conduct (even if not unlawful) has occurred, further action will be taken, including disciplinary action, such as but not limited to reprimand, change in work assignment, loss of privileges, mandatory training or suspension, and/or immediate termination. If it is determined that inappropriate conduct has occurred, the College will act promptly to eliminate the offending conduct, and where appropriate the College will also impose disciplinary action. The College will take steps to prevent the recurrence and remedy the effects of any sexual misconduct by taking the appropriate action, which may, depending upon the circumstances, include but not be limited to, disciplinary action, reprimand, change in work assignment, loss of privilege, mandatory training or suspension, expulsion and/or immediate termination.

Confidentiality

In the event that a member of the College community requests complete confidentiality and anonymity about experiencing an act of sex discrimination, sexual harassment, sexual violence, domestic violence, dating violence or stalking, the College will refer that individual to Victims Services of Montgomery County (“Victim Services”) or other licensed counseling professionals to whom the legal privilege of confidential communications attaches. The College has an ongoing agreement with Victim Services whereby a member of the College community may speak with Victim Services, or in the case of an employee, also with someone through the College’s Employee Assistance Program.

While respecting the request for confidentiality and privacy on the part of the complainant, the Title IX Coordinator or the Responsible Employee to whom the inquiry is made, will also inform the individual of his/her options with respect to reporting the incident and/or lodging a police report, and as to the availability of professional counseling resources. As noted elsewhere, the Responsible Employee has the further duty of reporting the incident directly to the Title IX Officer or the Director of Public Safety, who in turn will immediately contact the Title IX Officer. Depending on the facts and circumstances of the specific complaint, the Title IX Coordinator will immediately contact agencies and organizations to effect immediate relief, care, and support for the complainant and/or the victim in any given case including but not limited to:

The closest, competent health care facility

The Police Department and Campus Public Safety

The Student Support Referral Team (SSRT)

The Employee Assistance Program (EAP)

Victim Services of Montgomery County

The Title IX Coordinator will further inform the complainant that, to the greatest extent possible, the request for confidentiality, particularly with regard to the identity of the complainant, will be honored. However, the Title IX Coordinator will also be clear that the College makes the ultimate determination as to what should be disclosed regarding the facts and circumstances of the case, in the best interests of the complainant’s own future safety, as well as the safety of the College community as a whole. In the event of a formal complaint, all actions taken to investigate and resolve complaints through this procedure shall be conducted with as much privacy, discretion and confidentiality as possible without compromising the thoroughness and fairness of the investigation. All persons involved are to treat the situation with respect. To conduct a thorough investigation, the Investigator(s) may discuss the complaint with witnesses and those persons involved in, or affected by, the complaint, and those persons necessary to assist in the investigation or to implement appropriate disciplinary actions. For purposes of Clery Act reporting and recordkeeping, the complainant’s personally identifying information will not be disclosed.

Upon completion of the investigation, the individual(s) who made the complaint and the individual(s) against whom the complaint was made will be advised of the results of the investigation in writing and, where a remedy is determined to be appropriate, to inform the parties of the steps that will be taken to remedy the situation.

Appeal

Either the Complainant or Respondent may file an appeal of any decision concerning the resolution of the Title IX investigation. An appeal by either party must be made in writing to the office of the Title IX Coordinator within 15 days of receipt of the notice of resolution of the matter. The written appeal must state, in detail, the reason(s) for the appeal and shall address one or more of the following:

If the appeal alleges that the findings of the investigator included relevant factual errors or omitted relevant facts, the appeal shall specify each factual error and/or details of each relevant fact that was omitted from the investigation.

If the appeal alleges substantive procedural errors, the person appealing shall identify each instance of said substantive procedural error.

If the appeal alleges relevant or substantive issues or questions concerning interpretation of College policy, the person appealing shall state, in detail, the issues or questions supporting this allegation.

If the appeal alleges that new information or evidence exists, the appeal shall specify the reason why this information was not available or not provided to the Investigator during the course of the investigation, including the reason why the information could not have been provided on a timely basis.

If the appeal alleges either that action or inaction of the supervisor in response to the findings of the investigation will not prevent future violations of this policy, the person appealing will specify, in detail, the reason(s) and basis for this allegation.

No disciplinary or other action based upon the original complaint findings shall be taken against the alleged offender during the appeals process, although temporary, interim measures may remain in place. The appeal process will be conducted in an impartial manner by an impartial decision maker.

No Retaliation for Filing a Complaint of Sexual Harassment or Unlawful Discrimination

An institution or an officer, employee, or agent of an institution, may not retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for exercising their rights or responsibilities under any provision described in this policy.

Retaliation against any individual for making a complaint of sexual harassment, discrimination, sexual violence to include dating violence, domestic violence, sexual assault or stalking, or for assisting in the investigation of such a complaint is a violation of this policy and will not be tolerated. Any acts of retaliation will be subject to appropriate disciplinary action, such as but not limited to reprimand, change in work assignment, loss of privileges, mandatory training or suspension and/or immediate termination.

False Accusations

Anyone who knowingly makes a false accusation of discrimination, harassment, or retaliation will be subject to appropriate sanctions which may include, but are not limited to, written warning, demotion, transfer, suspension, dismissal, expulsion or termination.

College Investigators of Complaints of Sexual Harassment and Unlawful Employment Discrimination

The following Investigators are designated as those persons who are charged with coordinating the College’s implementation of this policy, and investigating complaints of unlawful discrimination, sexual misconduct, or retaliation for the College. They may be contacted to initiate an investigation under the policy or to answer questions regarding this policy. The College also reserves the right to retain an outside investigator(s) to investigate complaints regarding violations of this policy.

Dean(s) of Student Affairs

Executive Director of Human Resources

The Complainant or the Respondent might allege that the investigator has a substantial conflict of interest that might impair his/her ability to conduct a fair and impartial investigation of the allegations. In that event, details supporting the alleged conflict of interest must be submitted, in writing, to the Office of Equity and Diversity Initiatives within 5 days of receiving notice of the identity of the investigator. A determination will be made about the existence of a conflict of interest and, if such a conflict is found to exist, an alternative investigator will be appointed as expeditiously as possible. In the event that a request is made and an alternate investigator must be appointed, any specific timeline provided for in the complaint procedure shall be suspended pending the determination and/or appointment.

Education and Training

The College is committed to ensuring both preventive and responsive training and relevant educational opportunities for all members of the campus community in the area of sexual misconduct.

Each Fall and Spring semester, Victim Services of Montgomery County, along with other community service organizations, will assist the College in offering collaborative and comprehensive overviews on the overarching topic of sexual misconduct. Additionally, the College will offer regular "lunch-n-learn" workshops during the months of October (Domestic Violence Awareness Month) and April (Sexual Assault Awareness Month) on topics such as healthy relationships, issues of consent, options and opportunities for bystander intervention, and the influence of drugs and alcohol on sexual misconduct.

In the area of responsive education and training, the college is committed to ensuring that all College personnel designated as investigators, counselors and adjudicators in the area of sexual misconduct will receive specialized and regular training, and will be cognizant of the special needs of complainants in the area of sexual misconduct, while also ensuring the rights of respondents.

The College has a dedicated webpage on its website to address concerns related to sexual misconduct and will contain relevant information regarding the College's policies, procedures, information updates and ongoing training opportunities for the campus community with respect to information on the various areas of sexual misconduct, opportunities for community assistance, and the resources available in the event of sexual misconduct.

State and Federal Agencies

In addition to the above, employees who believe that they may have been subjected to sexual harassment or unlawful discrimination may file a formal complaint with government agencies set forth below. Students may file a complaint with the U.S. Department of Education. Using the College’s complaint process does not prohibit an employee or student from filing a complaint with these agencies.